GAYNE LUCAS and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 423
•6 July 2012
[2012] AATA 423
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1555
Re
GAYNE LUCAS
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
Decision
Tribunal Honourable Dr B H McPherson, CBE, Deputy President and Mr P Wulf, Member
Date 6 July 2012 Place Brisbane The Tribunal affirms the decision under review.
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Honourable Dr B H McPherson, CBE, Deputy President
Catchwords
IMMIGRATION – Visa cancellation – Character test – Serious criminal record – Protection of the Australian community – Seriousness and nature of the conduct – Risk that the conduct may be repeated – Whether person a minor when person began living in Australia – Length of time ordinarily resident in Australia before engaging in criminal activity – International obligations –Family ties – Links to country to which person would be removed – Hardship to Applicant or immediate family – Decision under review affirmed.
Legislation
Migration Act 1958 (Cth) ss 499, 501, 501G
Cases
Heyward v Minister for Immigration and Citizenship [2009] AATA 536
Heyward v Minister for Immigration and Citizenship [2009] FCA 1313
Heyward v Minister for Immigration and Citizenship [2009] FCAFC 177
Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Minister of Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 112 ALR 198; (1993) 40 FCR 493
Paredes v Minister for Immigration and Citizenship [2011] AATA 262Secondary Materials
Direction [No. 41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Honourable Dr B H McPherson, CBE, Deputy President and Mr P Wulf, Member
6 July 2012
Mr Gayne Terrence Lucas has applied to the Administrative Appeals Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship (“the Minister”) to cancel his permanent Class BB, Subclass 155 (Five Year Resident Return) Australian visa (“visa”).[1] The stated ground for that decision was that Mr Lucas did not pass the “character test” and posed an “unacceptable risk of harm” to the Australian community.
[1] Exhibit A: G1 – 33: Notice of Visa Cancellation, 11 April 2012.
Mr Lucas is 21 years of age. He was born in Papua Niugini and is a citizen of that country. On 16 November 2003, at age 13 and one month, he migrated to Australia where he has lived since his arrival, except for a period back in Papua Niugini between 3 September 2006 and 20 May 2007. Since returning to Australia, Mr Lucas has been convicted of a number of offences and served three concurrent custodial sentences. His criminal activity commenced only eight days after his 18th birthday, including two high range drink driving offences and other less serious driving offences. His major offences of 2 March 2009 and 20 June 2009 resulted in O’Brien DCJ of the Brisbane District Court sending the Applicant to gaol for five concurrent sentences of six years, twelve months and six months with no parole date. Due to these offences, a delegate for the Minister, on 11 April 2012, cancelled the Applicant’s visa.
THE ISSUE AND THE TRIBUNAL'S DETERMINATION
The issue for the Tribunal's determination is whether the Tribunal should use its discretion to cancel the Applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”). For the reasons which follow, the Tribunal has determined that the Applicant is an unacceptable risk to the Australian community and therefore the decision is affirmed and his visa is cancelled.
THE RELEVANT LEGISLATION
Under s 501(2) of the Act, the Minister, or the Tribunal acting as substitute decision-maker, may cancel a visa if they “reasonably suspect that the person [who holds the visa] does not pass the character test” and “the person does not satisfy the [decision-maker] that the person passes the character test”. A person does not pass the character test if he or she has a “substantial criminal record”.[2] The Act defines a “substantial criminal record” to include having been sentenced to a term of imprisonment of 12 months or more, or having been sentenced to two or more terms of imprisonment where the total of those terms is two years or more.[3] It is conceded that Mr Lucas satisfies both elements of the “substantial criminal record” test and therefore does not pass the character test. The precondition to the exercise of the power to cancel the visa is therefore satisfied.
[2] Migration Act 1958 (Cth), s 501(6)(a).
[3] Migration Act 1958 (Cth), s 501(7)(c) and (d).
THE EVIDENCE
The evidence before the Tribunal comprised:
(a)Exhibit A: the "G Documents" (G1-G11: pp. 1-124) lodged by the Minister in accordance with s 501G of the Migration Act 1958 (Cth);
(b)Exhibit B: “Supplementary G Documents Part 1 - Queensland Department of Community Safety" (SG1: pp. 1-157) lodged by the Minister in accordance with s 501G of the Migration Act 1958 (Cth);
(c)Exhibit C: "Supplementary G Documents Part 2 - Queensland Police Service" (SG2: pp. 158-202) lodged by the Minister in accordance with s 501G of the Migration Act 1958 (Cth);
(d)Exhibit D: "Supplementary G Documents Part 3 - Queensland Health" (SG3: pp. 203-254) lodged by the Minister in accordance with s 501G of the Migration Act 1958 (Cth);
(e)Exhibit E: "Supplementary G Documents Part 4 – Psychological Report and Related Documents" (SG4-SG6: pp. 255-277) lodged by the Minister in accordance with s 501G of the Migration Act 1958 (Cth);
(f)Exhibit F: "Supplementary G Documents Part 5 – Unredacted Version of Violation History from Queensland Department of Community Safety " (SG7-SG8: pp. 278-321) lodged by the Minister in accordance with s 501G of the Migration Act 1958 (Cth);
(g)Exhibit G: Applicant’s Statement of Facts and Contentions dated 5 June 2012;
(h)Exhibit H: Applicant’s undated Statement with attachments
(i)Exhibit I: Statements/Letters of Support by Mrs Lucy Devlin undated; Miss Tootsie Lucas undated; Mr Richard Devlin undated 6 January 2012; and Mr R Bruce Coplestone undated;
(j)Exhibit J: Respondent's Statement of Facts and Contentions dated 21 May 2012; and
(k)oral evidence of the Applicant, Mrs Lucy Devlin, Mr Richard Devlin, Miss Tootsie Lucas, Dr Susan Boyce, Forensic and Clinical Psychologist and Mr John McAulife, Corrections Supervisor, Southern Queensland Correctional Centre.
Additional evidence was tendered at the hearing including:
(a)Exhibit 1: Bundle of travel documents of Mrs Lucy Devlin;
(b)Exhibit 2: Bundle of travel documents of Mr Richard Devlin; and
(c)Exhibit 3: Psychology report of Dr Susan Boyce dated 4 June 2012.[4]
[4] See Exhibit E, pp. 251-277.
The full extent of the Applicant’s criminal history was set out in the G Documents and Supplementary G Documents prepared by the Respondent. There was no argument as to the serious nature of the offences. Specifically, the Applicant acknowledged that the offences of especially 20 June 2009 were extremely concerning although he appeared to suggest that these were solely as a result of alcohol use.
Given the extent of the Applicant’s criminal history and the fact he has been sentenced to imprisonment for a term exceeding 12 months or more (six years, twelve months and six months with no parole date) following his actions of 2 March 2009 and 20 June 2009, and the acknowledgement at the commencement of the hearing by the applicant, through his mother, who appeared for him at the hearing, that he did not pass the character test, the Tribunal is satisfied that the Applicant fails the character test.
As we have found that the Applicant does not meet the character test mandated in s 501(6) of the Act, we must consider whether the discretion in s 501(2) of the Act to cancel the Applicant’s visa should be exercised. In exercising the discretion whether or not to cancel the Applicant’s visa, we are required, pursuant to s 499 of the Act, to take into account any written directions by the Minister as to the performance or exercise of the discretion.
The discretion to cancel the visa
At the time the Minister’s delegate made the decision in this matter, and currently, Direction [no. 41] – Visa refusal and cancellation under s 501 (“Direction [41]”) was in force.
Direction [41] states as its objective, at para 5.1:
(1)The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.
Further guidance is given at para 5.2(2) of Direction [41]:
In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a) the nature of any harm that the person may cause to the Australian community; and
(b) the risk of that harm occurring.
Direction [41] provides that in exercising the discretion of whether or not to cancel a visa, the decision-maker must take into account four “primary considerations” and seven “other considerations”. The primary considerations in exercising the discretion whether to cancel a visa or not are set out at para 10(1) of Direction [41]:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)relevant international obligations.
Protection of the Australian Community
Paragraph 10.1 of Direction [41] reads:
Protection of the Australian Community
(1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2) The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued entry include:
(a)the seriousness and nature of the relevant conduct; and
(b)The risk that the conduct may be repeated.
The Seriousness and Nature of the Conduct
Paragraph 10.1.1 of Direction [41] states:
(1)Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and disabled), are especially abhorrent to the whole community.
(2)The following are examples of offences and conduct that are considered serious:
…
(d) grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);
…
While the Tribunal notes that the offences the Applicant committed are included in the list provided in para 10.1.1(2), Direction [41] makes it clear that the list included in para 10.1.1(2) is not exhaustive and therefore his other offences would also fall within the definition.
The Applicant has been convicted of assault occasioning bodily harm whilst armed (3 charges), grievous bodily harm, common assault (2 charges) and assault occasioning bodily harm. The three charges of assault occasioning bodily harm whilst armed are extremely concerning as they involved the Applicant inflicting serious wounds on innocent unarmed people using a machete to do so in episodes of gratuitous street violence.[5] With respect to these charges, there were submissions made by the Crown during sentencing that the Applicant could, under the statute, have been considered a serious violent offender, which shows the magnitude of the offences.[6] It is noted however that O’Brien DCJ declined to make such an order in this case. These offences very much fulfil the statutory requirements for an offence to be considered as a serious offence.
[5] Exhibit A: G8; 72-75 Transcript of Proceedings, The Queen v Gayne Terrence Lucas, 15 September 2010, p. 73, line 18.
[6] Exhibit A: G8; 72-75 Transcript of Proceedings, The Queen v Gayne Terrence Lucas, 15 September 2010, p. 74, line 50.
Specifically there are no mitigating circumstances with respect to the offences. The Applicant claimed that their commission was as the result of the influence of alcohol; but in the Tribunal’s opinion, that overstates the position.[7] The Tribunal cannot, in any event, see how this could in any way be a mitigating factor. He had the machete in his car and used it without thinking of the consequences or even whether he might take a life
[7] Paredes v Minister for Immigration and Citizenship [2011] AATA 262.
Paragraph 10.1.1(3) of Direction [41] states, inter alia:
The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including:
(i)the number and nature of offences;
(ii)the period between offences; and
(iii)the time elapsed since the most recent offence.
The Applicant has committed offences only in Australia. With respect to his time in Australia, the Applicant has committed five serious offences. This was during a period of only eight days after he turned 18 that he committed his first less serious offence; when he committed his last offence, on 20 June 2009, he was only 18 years and eight months.
While it is noted that he has not re-offended since 20 June 2009, he has been incarcerated since 22 June 2009 and so could not commit offences except in gaol. The Tribunal finds that this factor does not weigh in the Applicant’s favour.
The Risk that the Conduct May be Repeated
The Applicant in these proceedings suggested that he had changed and is a reformed character, although this is nowhere substantiated. The Applicant’s evidence was that he moved to Australia with his mother and stepfather after his stepfather got a job back in Australia. He suggested that he was easily persuaded to undertake sometimes illegal acts as a result of his ethnicity. He was suspended during high school and finished school in Year 11 in order to commence a plumbing apprenticeship.
At about this time, Mr Lucas commenced drinking heavily with friends on weekends. He appears to have limited regard for Queensland driving laws, and judicial system, considering his numerous high range driving offences and his failure to appear, which was a breach of a judicial order. He admitted that he did not advise his parents of his offences. The only reason his parents became aware of his actions was that his mother found the charge sheet in his pocket. These continued breaches of the law demonstrate that, after and despite being charged, the Applicant continued to re-offend.
Whilst in prison, the Applicant has undertaken courses directed towards dealing with violence.[8]These courses include, among other, Ending Offending, Ending Family Violence and attending AA in prison. However, it is apparent that his conduct while in gaol has been less than exemplary. He was issued with two breach notices (August 2009 and April 2010) as well as numerous warnings. There would appear to be variations in impressions of his conduct, with some prison officers indicating that the Applicant was polite and well mannered, while others appear to suggest that the Applicant’s conduct has been less than satisfactory.[9]
[8] Exhibit B: SG1; 1-157: 138-147 and attachment to Exhibit H.
[9] Exhibit B: SG1; 1-157: 10, 15, 16.
Dr Susan Boyce, Forensic and Clinical Psychologist, prepared a report for the Applicant.[10] Dr Boyce assessed the Applicant over a period of 90 minutes at Southern Queensland Correctional Centre. During the assessment and for the writing of her report, Dr Boyce used clinical psychological assessment techniques such as the Violence Risk Appraisal Guide (VRAG)[11] and Historical Clinical Risk 20 (HCR-20)[12] to determine the Applicant’s characteristics and his potential to re-offend.
[10] Exhibit E: SG4-SG6: pp. 255-277 and Exhibit 3.
[11] Quinsey, V. L., Rice, M. E., Harris, G. T. & Cormier, C. A. (1998), Violent Offenders: Appraising and Managing Risk, American Psychological Association =, Washington,, D. C.
[12] Webster, C., Douglas, K., Eaves, D., and Hart, S. (1997) The Historical Clinical Risk – 20 HCR-20 Assessing Risk for Violence Version 2, Mental Health, Law and Policy Institute.
Using the VRAG, Dr Boyce assessed Mr Lucas as having a score of 4, which suggested that the probability of violent recidivism within a seven year period was 35% and within ten years was 48%.[13] When using the HRC-20, Dr Boyce assessed the Applicant as a “Low to Moderate” risk, mainly based on his use of a weapon in commission of the offences.[14] When making that determination, Dr Boyce suggested that if the Applicant were to engage in violent behaviour, it might “be more likely to be of a serious nature and may involve the use of a weapon”.[15]
[13] Exhibit E: SG4-SG6: pp. 255-277 and Exhibit 3 – para 53.
[14] Exhibit E: SG4-SG6: pp. 255-277 and Exhibit 3 – para 61.
[15] Exhibit E: SG4-SG6: pp. 255-277 and Exhibit 3 – para 64.
In Lam and Minister for Immigration and Multicultural Affairs,[16] the then President of the Tribunal indicated that “[o]nce a person has shown a disregard for the law, it can never be said that there is no risk of re‑offending”. The Full Court of the Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey[17] also suggested that there was “no inconsistency in finding that a risk [of recidivism] is real, in the sense that it is not far-fetched or fanciful, and that the degree of probability of its occurrence is quantitatively low”.
[16] [1999] AATA 56 at [51].
[17] [1993] FCA 75; (1993) 112 ALR 198; (1993) 40 FCR 493.
Given the Applicant’s history, we are satisfied that there is a real risk of the Applicant committing further offences if he is allowed to remain in Australia. This factor therefore does not weigh in Mr Lucas’ favour as a primary consideration.
Whether the Applicant was a Minor when He Began Living in Australia
The next primary consideration relevant in Mr Lucas’s case relates to his being a minor when he first began living in Australia. Direction [41], paras 10.2(1) and (2) state:
(1)If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2)Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
We note that the Applicant was approximately 13 years old when he arrived in Australia in November 2003. Accordingly paras 10.2(1) and (2) are relevant as Mr Lucas still had some time before attaining adulthood. He attended school both in Brisbane (and presumably back in Papua Niugini) until Year 11, when he left to take up a plumbing apprenticeship. He returned to Papua Niugini for a period of about eight months or so when his stepfather was employed in that country on a drilling contract.
We also note the Applicant’s submissions, and those of his parents, that he has family only in Australia; however it would appear that he has some support in Papua Niugini through his stepfather’s brother and his children. It is also noted that his natural father still resides in Papua Niugini.
However, based on his immediate family and their support, this factor weighs in Mr Lucas’ favour in respect of the primary considerations.
The Length of Time that the Applicant has been Ordinarily Resident in Australia
Direction [41] provides, at para 10.3(1):
more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
In Heyward v Minister for Immigration and Citizenship,[18] the Tribunal stated that “[i]t is not the total period of ordinary residence that is relevant under Direction No 41, however, but the length of time before engaging in criminal activity or activity that bears negatively on the applicant’s character”. In this case, Mr Lucas had lived in Australia for about 4 years and three months, from November 2003, before the time of his first offence. Importantly, however, his first offence occurred just eight days after he turned 18 and they continued, with increasing seriousness, until he was incarcerated in June 2009.
[18] [2009] AATA 536 at [307]; see also generally Heyward v Minister for Immigration and Citizenship [2009] FCA 1313 and [2009] FCAFC 177.
This factor therefore does not weigh in Mr Lucas’ favour.
International Obligations
The parties agree that there is no relevant international obligation in this matter.
Other Considerations
Direction [41] lists, at para 11(3), seven other non-primary considerations that might be taken into account in considering whether to cancel a visa, if relevant to the circumstances of the Applicant.
Family ties – the nature and extent of any relationship:
The Applicant does not have a partner and therefore this is not a relevant factor. The Applicant’s mother, her husband (the Applicant’s stepfather) and his sister provided statements, as well as appearing in person before the Tribunal. It was clear that there is a special bond between the Applicant and his sister. His mother also made repeated references in submissions to the relationship between the Applicant and herself. Importantly, it is noted that Mrs Lucas had travelled on numerous occasions back to Papua Niugini since coming to Australia for the first time in 2003.[19] On all documents, Mrs Devlin indicated that she was travelling there to visit friends and relatives and/or have a holiday. These visits were, since the Applicant returned to Australia permanently in 2007, for periods of two or three months. It is also noted that when the Applicant returned to Australia in May 2007, his mother stayed in Papua Niugini until December of that year, leaving him here without her for a period of seven months.
[19] Exhibit 1
The Respondent spent time cross examining the Applicant’s witnesses with respect to readings referring to illegal substances during their attendances at the gaol to visit him. The Respondent appeared to be suggesting that the three witnesses were drug users and that this would impact on the Applicant’s potential both to re-offend and as well as on the family relationships when he was released.
The Tribunal notes that all the readings were either a one or two point reading. In contrast, when Mr McAulife, a Corrections Supervisor at the gaol where the Applicant is incarcerated, gave evidence, he indicated that this was a “good” reading. However, when questioned by the Tribunal, he indicated that a reading of “7” was one that would normally be associated with someone that had drugs either on their person or had been in contact with illegal substances that could be read by the monitoring equipment. When questioned about the potential of coming into contact with an illegal substance that would trigger a reading, he indicated that merely brushing past a person who could have been in contact with drugs would precipitate a reading.
Continually and unwaveringly, the oral evidence of witnesses was that they were not drug users and there must, therefore, be an alternative explanation for the reading. Further, Mr Devlin emphasised that his occupation is a driller. The Tribunal accepted that the strict requirements imposed on the occupation which included random alcohol and drug testing.
The Tribunal found this line of questioning offensive, particularly given the evidence of Mr McAulife that undertaking a search would not be attempted unless there was a reading of three or higher. There was nothing in the evidence to suggest that the witnesses were anything other than normal family members who visited the Applicant at the goal. At no time did the Respondent provide any evidence suggesting that the witnesses were under investigation or that there had ever been complaints made to the Queensland Police Service or any other evidence to support that line of questioning. Accordingly, the Tribunal is unable to allow any weight to this consideration and does not find that the imputation put forward involves any element of recidivism or likelihood of reoffending by the Applicant. On the contrary, the evidence implies that the family is a close one, as is inherent in their constant visits to the Applicant in gaol.
There is no compelling reason why his mother, Mrs Devlin, should not visit the Applicant in Papua Niugini if that is where he is. True, she may have a medical condition that restricts her travel abroad; but there is nothing to say that her condition cannot be managed equally well in that country as in Australia. If it is considered essential that the family be close to the Applicant, it would be possible for his stepfather, Mr Devlin to obtain full-time employment in Papua Niugini, as he has done in the past, and for the family to reside there.
Links to the country to which the Applicant would be moved
The Applicant arrived in Australia aged 13 years and one month; however he spent about nine months back in Papua Niugini in 2006-2007. The Applicant has not lived with his natural father since his parents separated when he was aged six and he has had limited contact with him since that time; seeing him only on at least two occasions. The Applicant indicated that he did not have a relationship with his natural father and had difficulty conversing with him as they had nothing in common. However, it would appear that Mr Devlin’s brother works in Papua Niugini and that his children have a close relationship with the Applicant. There is, therefore, nothing preventing them from providing the Applicant with assistance on his return to that country.
Hardship to the Applicant and his immediate family
We see no reason why the Applicant could not again adapt to life in Papua Niugini. He is fit and in good health, and apart from Mrs Devlin’s medical condition mentioned above, there was no evidence as to any other reason to restrict his family’s ability to visit him there.
Level of education – efforts to improve
The applicant has obtained training and has acquired ability as an apprentice plumber. There is no evidence that the work experience and skills he has obtained while in Australia would not be useful to him in gaining employment elsewhere.
Decision
In exercising the discretionary power to cancel Mr Lucas’s visa, we take into account the four primary considerations as well as any “other” relevant factors and undertake a balancing exercise. In doing so, we must be guided by the overarching general principle set out in the objectives of Direction [41]; that is, the protection of the Australian community. Two of the four primary factors favour cancelling Mr Lucas’s visa — the relatively short period he has resided at liberty here and the protection of the Australian community. The fact that Mr Lucas was a minor when he commenced living in Australia slightly favours him. The other relevant factor (Australia’s international obligations) is not relevant and may be completely disregarded in this matter.
Notwithstanding that the Applicant’s removal from Australia will cause potential suffering to his mother and sister in particular, their interests are to be subordinated to the interests of Australian community as a whole. The Applicant is a serious offender and we are satisfied that there is a real risk that he may re-offend. This is an instance in which, practically speaking, the protection of the Australian community outweighs all other factors.
The decision under review is affirmed and the Applicant’s visa is cancelled.
I certify that the preceding 49 (forty nine) paragraphs are a true copy of the reasons for the decision herein of Honourable Dr B H McPherson CBE, Deputy President and Mr P Wulf, Member.
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Associate
Dated 6 July 2012
Date(s) of hearing 18 June 2012 Solicitors for the Applicant Mrs Lucy Devlin Counsel for the Respondent Masothy Yin
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